tv History Bookshelf Gerard Magliocca American Founding Son CSPAN March 25, 2018 7:30am-8:31am EDT
but at the time congress has the power to sort of insist upon this. johnson eventually did fire stanton, because it was the only way he could get his perspective on the 14th amendment out there and enforced. that is why congress then impeached him. more accurate it might be to say they had an excuse to impeach him finally, and they did. mr. rosen: this was not a trivial dispute over a legalistic matter, this is a clash between johnson, who does not want to enforce the 14th amendment, and being him and congress who does. bingham had a rather radical proposal that the supreme court should be wiped out if it refused to support reconstruction.
tell us about his views on the court. mr. magliocca: well, it is fair to say that most of the reconstruction framers were worried about what the supreme court would do. their solution was to prevent and the supreme court about saying anything about the constitutionality of what they were doing. this sort of came in the form of a variety of threats. for example a law saying you , needed a super majority of supreme court justices, 2/3 to declare a law unconstitutional. that was something bingham talked about. he also talked about wiping them out. he never made clear what that meant. [laughter] mr. rosen: probably a good thing. mr. magliocca: there was the thought -- it was not stated openly -- if they can impeach the president, they could also start impeaching supreme court justices. eventually the supreme court found it gracefully to bow out and not decide any of the cases
before them challenging acts of congress as unconstitutional. but bingham was certainly, some people say he was a moderate as compared to thaddeus stevens. in some ways this was true. people who called for abolishing in court are not what we would call moderates. it is a relative term, or it is just showing that people have different perspectives on how to solve the problems that came after the civil war. mr. rosen: he is not a fan of the supreme court. you described his fierce criticisms of the dred scott decision and attempt to strip some of the decisions challenging lincoln. would he have thought congress or the supreme court should have taken the lead? mr. magliocca: he believed congress should take the lead. now of course he was a , congressman, so one should understand that. but his initial proposal for the
14th amendment that we now have simply said congress shall have the power to enforce fundamental rights and equality. it didn't really say anything about the course. then of course it was modified because people thought it would give congress too much power, or it did not give the courts a role, and he modified it to the language that we see now. he was also very active in the years after the ratification of the 14th amendment in putting together legislation that would enforce the legislation against the ku klux klan or other folks in the south trying to resist the will of the people. now given what the supreme court did to the 14th amendment after he left congress, perhaps his suspicions about the court were justified, but on the other hand you could say his faith in congress was not justified either, because congress at a certain point stopped the vigorous enforcement of 14th amendment guarantees. mr. rosen: there is a big debate today whether it is correct to
have the supreme court struck down the equality under the 14th amendment, including the voting rights act, which implicates the 15th amendment. and other laws. what would bingham have thought of that? mr. magliocca: well i think that bingham would have taken a very strong position that congress should be given great deference with respect to its enforcement of the 14th and 15th amendments. he did not write the 15th amendment, but he played a role in the in the construction of , it. i think that also he would have been surprised to learn that an important principle of the reconstruction amendments is that the states are all equal. because certainly the states were not treated equally in the period immediately following the civil war. the south was treated differently than the north when it came to the ratification of these amendments. after all they were occupied and
in effect given a strong reason to ratify the 14th amendment that they would stay occupied until they say yes. bingham was certainly not against states or states rights, i think in the context of racial equality, he had a strong nationalist perspective. mr. rosen: he had some extremely powerful things to say about race, and he believed the essence of the 14th amendment was to eliminate any sense of caste. tell us, did he believe the 14th amendment was simply about protecting african-americans? mr. magliocca: yes, although his vision went beyond that, in that the fundamental rights he was talking about would apply to all black, in thee or states or with respect to the national government. when it came to equality, what he was principally thinking about was african-american equality, because that was the
sort of the key problem they , were dealing with at the time. so that that was the central , purpose. of course, he didn't preclude the idea that it could be expanded further. for example he supported the idea of unwritten constitutional rights. he said that he believed they existed though he did not know what all of them were. he made statements that other statements that were hostile to other groups the other categories beyond race could be included in the guarantee of protection. mr. rosen: although he did not believe the 14th amendment protected women when it came to political rights, because he did not think the 14th amendment covered political rights. and when a delegation of when women's equality advocates came to him, he rebuffed their claims. tell us about that. mr. rosen: mr. magliocca: the question is, what about women,
and his position was there was no constitutional right for women to vote, that if states wanted to let women to vote, , that was fine, but there wasn't a guarantee of that. he was giving a speech about equality, and susan b. anthony was in the audience. and she raised her hand. mr. bingham what about women? , his answer was, i am not a puppet of logic, i am the slave of practical politics. now if you think about that for a second, that is an interesting political answer. what is he saying? is he saying gee, i'd like to , help you, but i can't get enough people to go along and help you out or was that just , his way of dodging the question? hard to say. he did not say much about women's rights in any of the materials that i could find. it is really not clear what position he had. the answer is i think he probably didn't have a position
that was different from other people and congress at that point in time. but his view shared by many in congress that the 14th amendment , only protected civil rights and not social, to be less sweeping than they are interpreted today, in other words not to prevent the government from discriminating for or against people on this a civil right was involved. what does that say about what he would have thought of affirmative action? mr. magliocca: that's difficult to say. of course some of his views were broader than what could be passed. one has to distinguish what he would think about it versus what the 14th amendment is protecting or saying. for example, while he never took a direct position on segregation, everything that -- if you look at the whole arc of his life, it is hard to believe that he would have thought that was constitutional or would have supported it. now with respect to affirmative action, i don't know. one way of thinking about it is
that he was someone who believed in formal equality under the law. and before -- and affirmative action in that sense is troubling because it is not providing formal equality, but something more like functional equality or equality of opportunity. he did vote for things in the immediate aftermath of the civil war that gave benefits only to the freed slaves. one could say, well, that was limited, temporary, emergency sort of setting. he never really explained why he voted for these things, so it is hard to answer the question. the historian in me says i can't really answer that question. you'll have to read the book and draw your own conclusion. mr. rosen: very responsible, but the journalist in me wants to continue talking about bingham on contemporary topics. we have to care about not only what bingham thought, but also thatthe conventions
ratified the 14th amendment are, not just the framework of the ratifiers. this can be confused. they are forced at gunpoint. they are basically told you can't come back into the union unless you ratify it. with that arrangement illegal in that sense to complicate the status of the 14th amendment? mr. magliocca: well, i don't think so, though it is certainly problematic. as you look at other examples of constitutional change in our history, you will find that there are lots of questionable legalities or illegalities involved. so if you look too closely, you might be disturbed at what you find. bingham's original thought was simply to say what if three , fourths of the northern states ratify, then it is part of the constitution? we don't need the south at all. he couldn't get enough people to go along with that so he went to this sort of plan b if you will which is that the south to be , given an opportunity to vote yes or no on whether or not to
ratify. of course, it wasn't a normal election, but then again as bingham explained, these are not normal times. you know the civil government in , the south had collapsed, and only the army could provide some framework for making decisions. what else could you do unless you simply said the south could , come back in the way they were before the war, and that would mean the war was kind of in vain, because all these people would have died, and what would have been accomplished? so are there legal questions there that are interesting when i teach the class about the subject like i am doing now? sure. does that undermine the legitimacy of something that a clear, overwhelming majority of americans on the victorious side of the civil war believed in? no i don't think so. , mr. rosen: so the resistance of southern states to ratify brings us back to the impeachment story. which we didn't finish because now you have to tell us, after andrew johnson fires stanton,
despite the tenure in office act bingham is one of the house , managers of the impeachment, and he takes the stance that the president cannot refuse to follow an active congress once said it is not constitutional. tell us more about that decision and his performance in the impeachment trial. mr. magliocca: an impeachment trial, as you remember from president clinton's impeachment trial, some members of the house go over and act as the prosecutors and the senate acts as the jury. so bingham gave the closing argument in the trial, took three days. it was kind of a very big event. he made a number of claims there that are a little hard to square with some other things that he said. prosecutors sometimes were advocating for something will overstate things strongly to try to win their case in a way that doesn't quite work out otherwise. for example, he said, the president had no right to refuse
to obey an act of congress, even if he thought it was unconstitutional and wanted to test it in the courts. when people pointed out, well, what if congress passed some really awful, clearly illegal thing? bingham's answer was, well that's why we have elections. , the problem with that is that there were not elections going on in the south at that point. they weren't allowed to be in congress until they ratified the 14th amendment. and it wasn't really great to say, well the courts could come , in and do something because the supreme court was being threatened with all sorts of terrible things if they were going to interfere with what congress was doing. now it is fair to say that bingham's position on that probably has some merit with respect to presidential refusals to reform -- enforce the law just because this is unconstitutional.
that is going too far, except for what some would say are extraordinary circumstances. bingham was trying to go out of his way to convince wavering senators to connect andrew johnson and remove him so the 14th amendment could be ratified. mr. rosen: it is incredible. you have the author of the 14th amendment then leaving the -- leading the impeachment charge against the president, who is trying to sort him. -- thwart him, and yet bingham's arguments were rejected. what does that say constitutionally about the standards for impeachment? did the senate reject his views? mr. magliocca: well johnson was , acquitted by one vote. they fell one vote short of two thirds to convict. why did they fall short? part of it is because johnson met with some senators and basically assured them and said if you vote not guilty, i will , stop interfering with the 14th amendment. and also, i will give you some
nice sugarplums in terms of jobs for your friends and things like that. that was, ironically, one of the senators that is discussed in john f. kennedy's profiles in courage, he is a republican who voted not guilty. while he stood up to his party and so on he's one of the guys , who got all of the nice job s for his friends. so he wasn't really a profile in courage. anyway, so the effort at impeachment and conviction failed, but the 14th amendment was ratified. so if you think that that was the goal, then isn't so clear that bingham's arguments were rejected. you might say also we were better off that a president that was actually removed simply because he was opposing the actions of congress. so in that sense while it was , messy, you might think that the end result worked out reasonably well. mr. rosen: we had the other night here a wonderful constitutional conversation with
my friend chris. it was a conservative group, and many people said president obama should be impeached because he is refusing to carry out parts of the -- selective about delaying the employer mandate of the health care law. what would bingham say? to that plan? mr. magliocca: the one thing we can say is bingham was a strong proponent of congressional power as a member of congress for his whole career. so certainly in any dispute between congress and the president, he tended to take the side of congress. now although he loved lincoln and thought he was a wonderful president. so that really didn't begin until -- it didn't apply to republican presidents. basically. so i think bingham was reluctant to vote for impeachment. you know, he only did it -- thaddeus stevens was saying that johnson should be impeached months before bingham agreed to that. ultimately, bingham felt that he needed some reason to impeach.
he thought the tenure of office act violation was the reason that could convince enough senators to vote for conviction. i think that with something like impeaching president obama, maybe the answer would be, well that's not going to work, , so why bother doing it? mr. rosen: that sounds like that might well be the case. bingham had a kind of sad second act or whatever after these extraordinary achievements that you describe, being at the center of the majors liberties. he then went off to be ambassador to japan and sort of missed the follow-up of the supreme court's refusal to implement the 14th amendment. tell us about that. mr. magliocca: he's not renominated for another term in congress in 1872. a sickly he has been in congress 20 years at that time. people are tired of him and his district. after he leaves congress, president grant appoints him to
be ambassador to japan. and he sends -- spent 12 years as ambassador and by all accounts had a wonderful time being ambassador, lived there with his family. he came back and retired. and at this point he was 70, and he lived to be 85. unfortunately, he just got old and also outlived his money. no pensions in those days. right? so by his last years, he was having all sorts of health problems, dementia basically. and also by 1900, when he died, the 14th amendment was simply not doing what he hoped it would do. african-americans were not voting in the south. a mafic americans were not -- african-americans were not being given equal treatment. actually when he died, the obituaries didn't even mention the fact that he had written this portion of the 14th amendment. if you go to where he is buried, there is a statue to him, which is a nice statue, and it doesn't
say anything about the 14th amendment. it does say he was for tariffs that would protect industry which doesn't seem like a rousing -- [laughter] so that was that was sad, , indeed. you can also say that, because he was in japan in the years immediately following the supreme court -- sort of during the supreme court's initial interpretations of the 14th amendment that he was unable to , influence those interpretations by either arguing cases are just making speeches and so on. we all might have suffered as a result of his absence. mr. rosen: i saw -- i see this great photo of the statue. i was struck by the photo. first of all it is a very nice photo, congratulations. this suggests that they are not easily available photos of him because a lot of people weren't paying attention.
you have to physically take a picture of the statue for the biography. he was well-known member, he wrote the 14th amendment, but why has he been so ignored? mr. magliocca: part of the problem is that, during the period of jim crow segregation, the leaders of reconstruction were viewed unfavorably. i like to tell the story that there is actually a movie, a biography of andrew johnson, that came out in the 1940's, where he is the hero. and what a great guy because he wanted to bring america together and get past all this bad feeling of the civil war. thaddeus stevens is played by lionel barrymore. those of you who remember lionel barrymore. depicted as a villain. so really until the civil rights movement came along, people just would not take seriously the idea that folks like bingham were high-minded or were
pursuing a cause that was just. now since then, some of the discussion of bingham has gotten caught up in legal issues like what do you think about applying the bill of rights to the states or different rights he was for. if you aren't on board with some of the things he wanted to do, then you tend to attack him. rather than the ideas. hopefully, that's going to change. and who knows, maybe this book will help? mr. rosen: it certainly should and will. the obvious question now is how , do we get this to steven spielberg and who plays bingham in the movie? [laughter] mr. magliocca: someone with long mutton, you know mutton , chop sideburns would be the person. i don't know who -- certainly -- why not tom hanks? mr. rosen: tom hanks would be great. mr. magliocca: he can play anybody, right? mr. rosen: lewis would be great
as well. i think we have time for just one or two questions from the audience if there are any. robin has the microphone, so please wait for us. yes, ma'am. >> what i'm wondering is, what would bingham think of the government shutdown that's going on right now and the whole really debate that is going on between the republicans and the democrats? mr. magliocca: great question, thank you so much for asking. mr. magliocca: yes, things. i think one thing to say is that bingham was a very partisan person. he was a republican. he didn't much like democrats. and the whole of reconstruction was partisan. there were very few democratic votes for the 14th amendment. at that time. of course, the parties were totally different than they are now. i mean democrats were mostly , from the south.
they had this belief in different things than what we have now. and i think the fights that the book talks about between congress and the president, and inside of congress, were very , very bitter. this was a time when a senator was beaten senseless on the floor of the senate, and where people carried pistols into the capital and had them in the house chamber. so i think he certainly would have been comfortable with the thought of very partisan, very intense fighting for what you thought was right. and beyond that, kind of hard to know what he would think about the specifics of health care or that sort of thing. mr. rosen: yes, sir. >> part of the remarkable language in the 14th amendment, two words, "any person." "any person." doesn't mean citizen. citizen comes up earlier. it includes children, it includes demented people, people
who are not competent. did, do you think that bingham really understood what he was proposing what he said any person? because children, old people, demented people, a whole variety of people don't get equal protection. and we incarcerate people without the process all the time. there is about a people that are million incarcerated without any due process. so i wonder what do you think he said, whennd when he he wrote, "any person"? mr. magliocca: well, one thing he had in mind if you wanted to protect people who were not citizens. immigrants, what we would now call lawful residents, he was quite clear that they had rights, too. and he, he even said they have the right to free speech, which
was a fundamental right that apply to all people who work citizens and noncitizens. the reason for that language is he wanted to make sure that recent immigrants were protected in their basic rights. and now, whether he thought about it to the extent that you are talking about and covered all of those sort of all of those categories, i think, in general, he did. but whether he stopped and thought, what about children, and what about the elderly, i don't know. but what he had in mind were making sure that non-citizens were protected in what he believed were there fundamental rights. >> yes, sir. >> the gettysburg movie was the 150th anniversary. the movie came out july the third, the anniversary of gettysburg. peter fonda was the only like big star in it. it was called "copperheads." right, i had never heard of it. copperheads were caucasians who were opposed to slavery.
i mean, they hated slavery. they thought it was a moral evil. however, they was anti-abraham lincoln because he took away habeas corpus. , theyy were saying that said when you take away habeas corpus, even though they were opposed to slavery but they hated abraham lincoln, saying that people that, that could have been innocent was like their human rights were being violated or taken away from them. then they also had a guy, and i forgot his name, but he was a star that i could recognize. they had eight guide playing andrew johnson as well. like you say, one vote saved him. the reason why that one vote saved him was his brother-in-law and they cut deals. andrew johnson, he was able to take his own personal wealth, give to his brother-in-law, and his brother-in-law was able to influence certain people. what they call them, backroom deals? the money, and that is how he
passed. the movie is good. it's called "copperheads." mr. rosen: that's a great recommendation. what was the last hope question? what was bingham's relationship with the copperheads? mr. magliocca: not friendly. as you may imagine. he basically called them traitors and sort of gave these very fiery speeches and congress attacking the most prominent of the copperheads who is also from ohio. didn't have much sympathy for those who were sort of antiwar, you might say, during the civil war. mr. rosen: our goal at the national constitution center is for everyone to read the constitution and educate yourself about it. ladies and gentlemen i can't , think of a better way of educating yourself about the 14th amendment than reading this spectacular book. please join me in thanking gerard. [applause] mr. rosen: thank you all for coming. he will be signing books.
please come out and buy them, and we can continue our constitutional conversation. thank you so much. [captions copyright national cable satellite corp. 2018] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> interested in "american history tv? " visit our website c-span.org/history. you can look at upcoming programs and watch college lectures, museum to her's, archival video to and more. >> c-span, where history unfold daily. in 1979, c-span was created as a public service by america's cable television companies. and today we continue to bring
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